Evans v. Holman

• Decision Date: 21 April 1910
• Citation: 244 Ill. 596,91 N.E. 723
• Parties: EVANS et al. v. HOLMAN et al.
• Court: Illinois Supreme Court

244 Ill. 596

91 N.E. 723

EVANS et al.

v.HOLMAN et al.

Supreme Court of Illinois.

April 21, 1910.

Appeal from Circuit Court, Clay County; James C. McBride, Judge.

Suit by J. T. Evans and others against John H. Holman and others. From a decree granting insufficient relief, complainants appeal, and defendants assign cross-errors. Reversed and remanded.

Monroe & Monroe, for appellants.

T. S. Williams, State's Atty., Charles E. Martin, John W. Thomason, and James H. Smith, for appellees.

CARTWRIGHT, J.

On March 16, 1907, the president and board of trustees of the village of Clay City, in Clay county, passed an ordinance approved on that date and designated ‘ordinance No. 63,’ granting to Theodore Fisher the right to set up and maintain poles, wires, and other structures and devices in the streets of the village in connection with an electric light plant to be constructed by him for the purpose of furnishing light, heat, and power to the village and its inhabitants for the period of 30 years, and the ordinance provided that the village should pay him $70 per annum for each of 23 arc lamps during said period for lighting the streets, alleys, and public grounds. At the same meeting another ordinance was passed, and approved at the same time, designated ‘ordinance No. 64,’ which provided for issuing bonds of the village, dated June 1, 1907, to the amount of $4,200, drawing interest at 6 per cent. payable annually, for the purchase of the electric light plant and property, and they were to show on their face that they were issued to provide money for that purpose. Five per cent. of the total taxable property within the village as equalized for the previous year was $4,200, and that was the limit of indebtedness that could be incurred. Eleven days afterward, on March 27, 1907, before the plant was constructed, a contract was executed by Fisher and the village, through the president and clerk, reciting the passage of the ordinance granting the license to Fisher and that he intended to incorporate a company and convey his rights and the property to said corporation, which should issue bonds to the amount of $7,296, maturing serially, beginning June 1, 1908, and bearing interest at 6 per cent., to be secured by a first mortgage on the plant, poles, wire circuits, and all machinery and appurtenances and property belonging to the plant and also the rights in the streets. By that contract Fisher agreed that the plant, when completed, should be conveyed to the village at the price of $4,200, to be paid in cash or village bonds to be issued under ordinance No. 64 and subject to the lien of the mortgage, for $7,296, to be made by the corporation. The village agreed to purchase the property and issue its bonds in the sum of $4,200 to pay for the same, subject to the mortgage; but the village was not to assume or agree to pay the mortgage debt. Fisher organized a corporation under the name of Clay City Electric Light & Power Company of Beardstown, in Cass county, and on May 14, 1907, made a conveyance to the corporation of the contemplated electric light plant and all his rights under ordinance No. 63. The corporation then issued bonds to the amount of $7,296. The bonds provided for in ordinance No. 64 to the amount of $4,200, dated June 1, 1907, were issued and delivered to Fisher. The plant was completed and the poles erected and wires strung in the streets and, when so completed, the corporation, on August 29, 1907, conveyed the same, as incumbered, for $7,296, to the village, and the deed was accepted at a special session held at that time. The annualinterest on the bonds issued by the village amounted to $252, and the taxes levied for 1908 included interest on bonded indebtedness to the amount of $645; the excess being for interest on the mortgage debt. At a meeting of the president and trustees held on June 1, 1908, the clerk was instructed to draw an order for $1,440.51 in payment of one of the mortgage bonds of $750, interest on the mortgage indebtedness of $437.06, and interest on the village bonds for $252, amounting, with exchange, to $1,440.51, which was paid. The appellants, 24 residents and taxpayers of the village, filed their bill in this case in the circuit court of Clay county, to the March term, 1909, alleging that all indebtedness above the $4,200 of bonds issued by the village was illegal and void and all taxes levied for bonded indebtedness above the amount necessary to meet what was then due on said bond issue was illegal. The town and county collectiors, the village of Clay City, the electric light and power company, Theodore Fisher, R. H. Garm, and the unknown owners of the bonds issued by the electric light and power company were made defendants, and the court was asked to enjoin the collectors from collecting said excess of taxes and to enjoin the village from making any appropriation of any tax or village funds, or levying any tax for the purpose of paying any part of the mortgage indebtedness of $7,296, or any interest thereon, and from diverting any other fund of said village to the payment of said debt, or any part thereof, and from levying any tax to pay, or paying from any fund, anything for the...